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The brawl over Kelly’s nominee for the Court of Appeals foreshadows a bigger fight for the Supreme Court

TOPEKA — The Kansas Senate unanimously upheld Kansas Court of Appeals nominee Rachel Pickering despite alarms raised by Republicans over judicial criticism leveled against her decisions as appellate defendant in a 15-year criminal case.

The Republican-dominated Senate voted to make Pickering, a Shawnee County District Court judge, the first Hispanic on the state Court of Appeals.

The old case and the glass ceiling issues could become footnotes in a broader policy effort by conservatives in the Kansas Legislature to build momentum for an amendment to the Kansas constitution that requires Senate confirmation of presidential candidates. Kansas Supreme Court. In 2013, the then governor. Sam Brownback signed a bill adopting the federal Senate advisory and consent model for candidates to the Court of Appeals. To strip Kansas governors of the power to appoint directly to the Supreme Court, however, would require amending the constitution.

Senator Virgil Peck, a Republican from Havana in southeastern Kansas, echoed the praise of both Republicans and Democrats for Pickering’s experience as a judge, prosecutor and defense attorney. He joined a chorus of GOP colleagues who denounced Gov. Laura Kelly for failing to provide the Senate Judiciary Committee with information about the Appeals Court’s criticisms of Pickering’s approach to appealing a criminal conviction.

“I was disappointed, frustrated. I could use different adjectives, but I’ll stop there,” Peck said. “Is this a unique experience? I don’t know. My conspiracy mind tended to say ‘No’. It’s probably happened before, I just didn’t know about it.

Peck, pivoting to the deeper political issue, said the experience with Pickering’s nomination raised the possibility that Kelly withheld unflattering information about the governor’s three nominees to the Supreme Court. In 2020, Kelly nominated Keynen Wall, Evelyn Wilson and Melissa Standridge to the state’s highest court among finalists selected by a nominating committee. In the November state election, Kansans voted to retain all three justices by a two-thirds majority.

“We have three people on the Supreme Court who have been nominated by our current governor,” Peck said. “We haven’t had the opportunity to weigh as legislators, as senators, on whether to sit on the highest court in the state of Kansas.”

Fellow Republican Sen. JR Claeys of Salina said the Senate Judiciary Committee discovered in the court record justification for questioning Pickering’s qualifications to serve on the Court of Appeals. He said the governor was aware of the controversy but did not share it with the Senate committee. The governor’s lack of disclosure demonstrated the value of Senate confirmation for members of the judicial branch, he said.

“Unfortunately,” Claeys said, “Senate confirmation does not yet exist for the Kansas Supreme Court, resulting in a selection process that is largely protected from public scrutiny. This is why it is so important to reform our method of judicial selection. People must have input.

Different perspectives

Senator Ethan Corson, a Fairway Democrat, lawyer and member of the Senate Judiciary Committee, said he was a strong supporter of Pickering’s nomination.

He said questions raised by senators about his decisions 15 years ago to drop a line of appeals on the evidence against the accused were relevant to consideration of his nomination to the Court of Appeals. Those issues should be examined in the context of a career as a criminal defense attorney and prosecutor, as well as years of working on appellate cases before the Supreme Court and the Court of Appeals, he said.

“I think Judge Pickering, in terms of his background, his reputation, his depth of experience, is really in a class of his own,” Corson said.

He said the Pickering debate during Senate committee deliberations foreshadowed the resurgence of a constitutional amendment proposal that fell short of the required two-thirds majority in the Senate during the 2022 session. Approved by the House and Senate and by voters across the state, the amendment would prevent governors from making direct nominations to the Supreme Court. Instead, governors would nominate individuals to the Supreme Court for the final decision to be made by the Senate.

Opponents of the change believe that giving the Senate responsibility for Supreme Court confirmations would undermine the role of the executive branch in the judiciary. Republicans have maintained House and Senate majorities over Democrats since 1993.

“I think this is an argument that you will see going forward to bring back the same amendment that failed last year,” Corson said. “The result would be the politicization of the courts at a time when we desperately need to try to turn the heat down and depoliticise things.”

House Democratic leader Vic Miller, a Topeka attorney and former municipal judge, said Senate Republicans thought they had found a smoking gun in Pickering’s nomination. He said the Pickering controversy was intended to persuade Kanas voters that governors could not be trusted to make Supreme Court appointments.

“Indeed,” Miller said, “their failure to understand the very complicated nuances of this legal situation is a clear example of why politics doesn’t belong in the confirmation process. The Senate is not tasked with confirming our judges, as evidenced by their politically driven witch hunt which ultimately ended in a unanimous vote.

Senate President Ty Masterson, a Republican from Andover, proposed a constitutional amendment in 2022 designed to end the influence of the Supreme Court nominating committee and repeal the merit-based selection process enshrined in the Kansas Constitution in 1958.

Masterson and other GOP lawmakers said membership in the nine-member nominating committee was biased toward members of the Kansas Bar Association. He said the current vetting process for Supreme Court candidates has failed to provide “the people with any real input into the judicial selection process,” has led to a seven-member Supreme Court issuing “extreme” decisions on the abortion law and ran afoul of the nation’s tradition of government checks and balances.

In 2019, the Senate rejected a resolution that required constitutional changes, so the process for reviewing Supreme Court nominations mirrored state law that guided the Senate’s confirmation of nominees to the Court of Appeals. The House passed a similar measure in 2016, but not with the two-thirds majority required to advance constitutional changes.

Since 2014, the Kansas Senate has confirmed nine of 10 nominees to the Court of Appeals. The only rejection — twice — was Carl Folsom, who has devoted much of his legal career to working as a federal and state public defender. His second rejection led Kelly to declare that “legislative leaders are still putting partisan politics ahead of their constitutionally mandated duties.”

Under this Senate confirmation process, Brownback placed two people on the Court of Appeals. The first, Caleb Stegall, was controversial because he was a general counsel in the governor’s office. He triggered a rebuke from House Minority Leader Paul Davis of Lawrence, who disagreed with Brownback’s nomination of “well-connected partisan friends.” Brownback later nominated Stegall to the Supreme Court.

Six of Kelly’s nominees to the 14-member state Court of Appeals — all women — have survived Senate review since 2019.

The backstory

In August, Kelly nominated Pickering to fill a vacancy on the Court of Appeals. The governor previously appointed her to the Shawnee County District Court in 2019. Pickering’s legal career has included work as an appellate defender, public defender, assistant district attorney, and assistant attorney general.

Pickering had argued 35 cases before the Supreme Court, 40 before the Court of Appeals, and authored more than 300 legal briefs. As an appellate defender, Pickering worked felony cases from all 105 Kansas counties. He handled criminal cases as a public defender and prosecutor in Shawnee County. She has also been involved in criminal cases and federal appeals in the state attorney general’s office.

On January 17, Pickering was called before the Senate Judiciary Committee to discuss her nomination to the Court of Appeals. Pickering and the governor’s office were notified in advance by Republican Senator Kellie Warren, committee chair and attorney for Lenexa, the committee would be exploring Pickering’s work for the Kansas Ombudsman’s Office on behalf of a criminal condemned.

On appeal, the Court of Appeal concluded that Pickering’s approach in that case was “objectively unreasonable” and raised the issue of the counsel’s ineffectiveness.

Pickering, who appeared for a second day of questioning by the Senate Judiciary Committee, said courts traditionally defer questions of strategy to the appellate council. To do otherwise, he said, would involve judges or judges engaging in “Monday morning quarterbacks.” He said the experience of being questioned by the Court of Appeals led her to attend “best practice” sessions to help other lawyers working in the appellate arena.

“There was no effort to hide it,” Pickering said. “Appellate practice can be tough. It helps if you can lead the way with others. You must be humble when teaching that continuing legal education.

She said no disciplinary case has been filed against her. The issues raised in the criminal appeal were later overturned and the Court of Appeal’s decision in that criminal case was no longer considered “good law,” she said.

Warren, chair of the Senate Judiciary Committee and failed candidate for attorney general last year, said a larger issue was Kelly’s decision to keep the Senate in the dark. Warren commended Pickering for meeting with senators one-on-one and speaking with the committee about his recollection of the appellate case.

“The problem is not the candidate, it’s the process,” Senate Vice President Rick Wilborn R-McPherson said. “There was a failure that could have been disastrous. I think this is an example of how the confirmation process works. I am disappointed that the governor’s office failed to provide information in a timely manner. I want to see the process improved moving forward.

When the dust settled, the Senate Judiciary Committee voted unanimously to approve Pickering’s confirmation to the Court of Appeals. Final full Senate vote: 37-0.

“Rachel is a public employee who is busy as a lawyer and a judge,” Kelly said. “Her experience in nearly every area of ​​criminal litigation will provide great insight as she serves on the Kansas Court of Appeals.”

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